Citation Nr: 0112144
Decision Date: 04/30/01 Archive Date: 05/03/01
DOCKET NO. 99-21 454 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUES
1. Disagreement with the initial 20 percent rating assigned
for the service-connected low back pain with degenerative
disc disease.
2. Disagreement with the initial noncompensable rating
assigned for the service-connected seborrheic dermatitis.
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. J. Alibrando, Counsel
INTRODUCTION
The veteran served on active duty from November 1976 to
November 1986 and from March 1987 to March 1997.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a May 1999 rating decision of the RO.
A hearing was held in February 2001 before the undersigned
Member of the Board at the RO.
FINDING OF FACT
The veteran's service-connected seborrheic dermatitis is
shown to be manifested by a disability picture that more
nearly approximates that of exudation or itching involving an
exposed surface; neither constant exudation or itching,
extensive lesions, nor marked disfigurement has been shown.
CONCLUSION OF LAW
The criteria for the assignment of a 10 percent rating for
the service-connected seborrheic dermatitis have been met. 38
U.S.C.A. 1155, 5107, 7104 (West 1991 & Supp. 2000); 38 C.F.R.
4.1, 4.2, 4.7, 4.10, 4.118 including Diagnostic Codes 7806,
7817 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that on November 9, 2000, the
President signed H.R. 4864, the "Veterans Claims Assistance
Act of 2000." The purpose of this bill is to reverse the
decision of the U.S. Court of Appeals for Veterans Claims
(Court) in Morton v. West, which held that the Secretary had
no authority to provide assistance to a claimant whose claim
was not "well grounded." The bill also establishes a
number of procedural requirements for VA in dealing with
claims for benefits. See Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The RO has not had an opportunity to address this new
legislation with regard to the veteran's claim for increase
for the service-connected skin disorder. However, by virtue
of the Statement of the Case, the veteran has been given
notice of the evidence necessary to support his claim. When
the veteran testified at the hearing in February 2001, he was
given notice of the evidence necessary to substantiate the
claim. At that hearing, the veteran did submit a private
doctor's statement with a waiver of initial consideration by
the RO. The duty to obtain evidence was met at the time of
the hearing pursuant to 38 C.F.R. § 3.103 (2000).
A review of the record by the Board at this time also shows
that the veteran has been afforded a VA examination in
connection with the claim so that no further assistance in
developing the facts pertinent to his claim is required.
A careful review of the service medical records shows that,
in August 1988, the veteran was seen for a rash on the wrist,
big toes, dorsal foot area and palms and fingers of both
hand. The diagnosis was that of viral exanthem. A September
1995 entry noted a one year history of scaly red patches on
the scalp only. An examination revealed several 3 to 5
centimeter patches on the scalp with scale and erythema. The
diagnosis was that of psoriasis vulgaris.
On VA examination in March 1998, the veteran reported that,
in 1991, he had developed a rash that was treated with
shampoo and medication. He indicated that the condition was
confined to the scalp. An examination of the skin revealed
an area the size of a quarter with redness and scaling in the
scalp above the right ear. No other skin lesion was seen.
The diagnoses included that of seborrheic dermatitis.
In February 2000, he testified that his skin condition
actually involved his hands, feet, groin, knee and elbow, in
addition to his scalp. He added that he was receiving
ongoing treatment for the skin condition from Dr. Phillips
and that the condition caused the skin to be itchy and
painful and at times to crack and bleed. He noted that his
toenails also would become thick and crusty and turn a
yellowish color. He testified that he used topical
medication and shampoo for the condition.
At the hearing, he submitted a statement dated in February
2001 from Dr. Phillips who noted that the veteran had
psoriasis of the fingernails, toenails, elbows and knees that
had caused a deformity of the nails. It was noted that
previous fungal cultures of the nails were negative. It was
indicated that he also had seborrhea dermatitis of the scalp,
nasal folds and groin area. It was noted that the veteran
was being treated for both conditions with topical medication
that maintained partial control but continued to have flares
of psoriasis and seborrhea dermatitis.
The regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history. The Board attempts to determine the
extent to which the veteran's disability adversely affects
his ability to function under the ordinary conditions of
daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1,
4.2, 4.10.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2000).
The veteran's service-connected seborrheic dermatitis is
rated under Diagnostic Code 7817 pertaining to dermatitis
exfoliativa, which is evaluated the same as eczema under
Diagnostic Code 7806.
Under Diagnostic Code 7806, a 10 percent evaluation is
warranted for exfoliation, exudation or itching involving an
exposed surface or extensive area. A 30 percent evaluation
requires constant exudation or itching, extensive lesions or
marked disfigurement. Finally, a 50 percent evaluation is
assigned for ulceration or extensive exfoliation or crusting,
and systemic or nervous manifestations, or exceptional
repugnance. 38 C.F.R. § 4.118, Diagnostic Code 7806.
Based on a review of the evidence of record including the
findings on the VA examination of March 1998, the Board finds
that the veteran's service-connected skin disorder is
productive of a level of impairment that more nearly
approximates that of exfoliation, exudation and itching
involving an exposed surface sufficient to warrant the
assignment of a 10 percent evaluation under Diagnostic Code
7806. The evidence of record shows that the veteran has
reported areas on the scalp, hands, feet and groin which
itch.
The VA examination also noted an area of redness and scaling
in the scalp above the right ear. There is private medical
evidence of seborrhea dermatitis of the scalp, nasal folds
and groin area and other findings of psoriasis. Hence, the
preponderance of the evidence supports the assignment of an
initial 10 percent evaluation for the service-connected skin
disability.
The Board finds that the preponderance of the evidence does
not support the assignment of a rating greater than 10
percent. The medical evidence on review does not serve to
establish that the veteran suffers from constant exudation or
itching, extensive lesions or marked disfigurement related to
the service-connected disability to support application of a
higher rating on that basis.
The Board has also considered whether the veteran is entitled
to "staged" ratings for the service-connected skin disorder
as prescribed by the Court in Fenderson v. West, 12 Vet. App.
119 (1999). The Board finds in this regard that, since
service, the service-connected disability has been disabling
to the extent as discussed hereinabove.
ORDER
An increased rating of 10 percent for the service-connected
skin disability is granted, subject to the regulations
controlling the disbursement of VA monetary benefits.
REMAND
The veteran seeks an increased rating for his service-
connected lumbar spine disability. A careful review of the
service medical records show that a magnetic resonance
imaging spectroscopy (MRI) done in May 1995, revealed
findings of extruded disc material at L4-L5 that was present
in the left lateral recess and abutted the left L5 nerve root
from the thecal sac. There was also an extruded disc noted
extending inferiorly from the L4-L5 level with disc material
situated behind the upper aspect of the L5 vertebral body.
A VA general medical examination was conducted in March 1998.
It was noted that the claims file was not available for
review. The examiner noted that forward flexion of the
dorsal lumbar spine was to 90 degrees and backward extension
was performed normally. It was indicated that there was pain
on all range of motion. The diagnosis included that of low
back pain, degenerative joint disease. No x-ray studies of
the back were done as part of that examination.
In January 2001, the veteran testified at the hearing that he
was receiving ongoing private treatment for his back
disability from Dr. Phillips. He indicated that he had pain
on movement of the back with limitation of motion associated
with that pain. He also testified that he had seen a
specialist, Dr. Joffman, and that he had had a MRI
approximately 6 to 8 months prior to the hearing.
Reportedly, Dr. Joffman had suggested surgery for the back
disability.
Under existing case law, the provisions of 38 C.F.R. §§ 4.40,
4.45 must be considered when a diagnostic code provides
solely for compensation based upon limitation of motion.
DeLuca v. Brown, 8 Vet. App. 202 (1995). In a December 1997
opinion, VAOGCPREC 36-97, the General Counsel of VA held that
those provisions were also applicable to the evaluation of
disability due to intervertebral disc syndrome.
The Board finds that the veteran should be afforded an
additional VA examination to determine the current severity
of the service-connected low back disability. The March 1998
VA examination was inadequate because the examiner did not
comment on the degree of impairment in terms of the Rating
Schedule. See DeLuca v. Brown. In addition, the RO should
attempt to obtain the private medical records regarding the
service-connected back disability prior to the VA examination
being conducted.
Finally, as noted, there has been a significant change in the
law during the pendency of this appeal.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminates the concept of a
well-grounded claim and supersedes the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA cannot assist in the
development of a claim that is not well grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Accordingly, this case is Remanded to the RO for the
following action:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names and addresses of all VA and
private medical care providers who
treated him for service-connected lumbar
spine disability since March 1997. The
RO should also request that the veteran
submitted signed authorizations for the
release to the VA of the medical records
of Drs. Phillips and Joffman.
Thereafter, the RO should obtain all
records identified by the veteran, to
include all treatment records of Drs.
Phillips and Joffman. All records
obtained must be associated with the
claims file.
2. The RO then should schedule the
veteran for a VA examination to determine
the current severity of the service-
connected lumbar spine disability. All
indicated tests, including x-ray studies
and range of motion testing of the lumbar
spine, must be conducted. Based on
his/her review of the case, the examiner
should comment on the extent of any
intervertebral disc syndrome in terms of
the Rating Schedule. In addition, the
examiner should indicate whether there is
any pain, weakened movement, excess
fatigability, or incoordination on
movement, and whether there is likely to
be additional range of motion loss of the
lumbar spine due to any of the following:
(1) pain on use, including flare-ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination.
These determinations should be expressed
in terms of the degree of additional
range of motion loss. The examiner
should also describe the degree of any
additional range of motion lost due to
pain on use or during flare-ups. A
complete rationale for any opinion
expressed must be provided. The
examination report should be associated
with the claims folder.
3. Then, the RO must review the claims
file and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, is completed.
4. Thereafter, the RO should
readjudicate the veteran's claim. If the
benefits sought on appeal remain denied,
the veteran should be provided with a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An
appropriate period of time should be
allowed for response thereto.
Thereafter, if indicated, the case should be returned to the
Board for the purpose of appellate disposition.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals